- (1.) This application has been preferred under Subsection (6) of Section 11 of the for appointment of the Arbitrator in pursuance of Clause no. 23 of the agreement dated 19 th February, 2009 and 29th March, 2009 (these two dates have been supplied by the learned counsel for the applicant). In pursuance of the agreement Clause no. 23, which is for arbitration, notice has also been given for the appointment of the Arbitrator because the dispute has arisen between the parties for the work done under the agreement.
(2.) Learned counsel for the respondentState submitted that by the Circular dated 18th November, 1992, the said Clause no. 23 has already been deleted and, hence, no Arbitrator can be appointed under Subsection (6) of Section 11 of the Act, 1996. This is the only argument, canvassed by the learned counsel for the respondent State.
(3.) Having heard learned counsels for both the sides and looking to the facts and circumstances of the case, it appears that: (i) An agreement has been entered into between the applicant and the respondent for the construction of dam. The terms and conditions of the said agreement is at Annexure1. This agreement is dated 19th February, 2009 which contained Clause no. 23 for arbitration, for resolving the dispute between the parties. (ii) It further appears that even in agreementII dated 29th March, 2009 which is at Annexure1 series, there is arbitration Clause no. 23 for resolving the dispute between the parties. (iii) Due notice, dated 18th August, 2015 has also been given by the applicant, which is at Annexure2, for appointment of the Arbitrator, but, no Arbitrator has been appointment by the respondentState. (iv) Learned counsel for the respondentState submitted that the Circular dated 18th November, 1992 has been issued, whereby, Clause no. 23 has been deleted, but, this contention is not helpful to the respondentState because looking to the agreement, as stated hereinabove, the said Clause is already inserted and both the parties to the agreement have also signed the said document. (v) It has been held by this Court in Arbitration Application No. 42 of 2007 dated 13th May, 2016 that if the agreement is signed by the parties, despite a Circular dated 18th November, 1992 has been issued by the respondentState, Clause no. 23 is binding upon the parties. (vi) It has been held by this Court in the case of M/s Sharda Construction v. State of Jharkhand, reported in 2005 (1) JLJR 162 in paragraphs 7 and 19, which read as under: "7. Before appreciating the submissions of the learned counsel, I would first like to refer the finding recorded by the learned Chief Justice while rejecting the application of the petitioner under section 11(6) of the said Act. Learned Chief Justice decided the issue as to whether there is an Arbitration Agreement whereby parties have agreed to resolve the disputes by appointing an Arbitrator. His Lordship observing as under: "The question then is whether there is an arbitration agreement in these cases and the parties have agreed on the procedure for resolution of the disputes and one of the parties had failed to act, justifying my interference by appointing an Arbitrator under section 11(6) of the Act. I find that the contract entered into by the petitioner with the respondents is Form F2 contract. In this Form F2 contract, there was a clause for arbitration, which was clause 23. But pursuant to the decision taken in that behalf by the Government, Clause 23 was deleted from all Form F2 contracts. This was done by issuing an appropriate Gazette notification at the appropriate time. The notification was on 18.11.1992. The contracts relied on by the petitioner were all entered into in the year 199899, long after the deletion of Clause 23 from all Form F2 contracts. Merely because in the Form F2 contract signed by the petitioner and the concerned Engineer, clause 23 had not been struck out, in my view, would not make any difference. That clause 23 left in the old forms used and left un struck has no efficacy in view of the Gazette notification deleting clause 23 from all F2 contracts. The petitioner as a contractor is bound by that deletion. Therefore, I am inclined to agree with the submission of counsel for the respondents that there was no valid or live arbitration clause in the contracts entered into by the petitioner and, therefore, there was no question of this court postulating that one of the parties had failed to perform the obligation cast on him by the arbitration clause. I am not impressed by the argument of learned counsel for the petitioner that there was no Gazette notification or a due publication by way of a Gazette notification. When a notification is duly published in the official Gazette, in the absence of any communication to the contrary in the notification itself, it shall come into force with effect from the date of that notification. There is no obligation on the part of the Government to communicate the Gazette notification to each and every individual, who might be affected by the notification. Here, when the petitioner entered into the agreement in Form F2 with the Government, he being an experienced contractor, is normally expected to know of the notification published in the year 1992 in the official Gazette deleting the arbitration clause in all Form F2 agreements. Apart from this as I have noticed, I am not in a position to accept the case that the publication of the Gazette notification in the due manner is not enough notice of the deletion of the arbitration clause to the public in general. Publication in the official Gazette is normally the mode of publication of any Government notification. Therefore, the argument that this court must proceed on the basis that the arbitration clause continues to subsist cannot be accepted. 19. In the light of the law laid down by the Supreme Court, in my considered opinion, learned Chief Justice has erred in law in adjudicating upon the question of existence and validity of the Arbitration Agreement contained in the contract. As noticed above, prima facie there is an arbitration clause contained in the contract entered into between the parties. The stand of the petitioner is that neither the notification deleting the arbitration clause was communicated by the respondents nor the petitioners were aware about the deletion of arbitration clause by Gazette Notification. On the other hand, the stand of the respondents is that Clause 23 of the Contract which is the arbitration clause stood deleted by gazette notification in the year 1992 but because of inadvertence such clause was not struck out from the contract. In my opinion, all these questions relate to existence and validity of arbitration agreement is to be adjudicated upon only by Arbitral Tribunal. It is beyond the power of the learned Chief Justice to have gone into these questions and adjudicate upon the issue of existence and validity of the Arbitration Clause." (emphasis supplied) (vii) Thus, whenever the parties are signing the agreement and if there is any arbitration clause of resolving the dispute between the parties, which are arising out of the said agreement, even if there is earlier Circular dated 18th November, 1992, the Arbitrator has to be appointed by the respondentState. The Circular dated 18th November, 1992 has no value in the eye of law, when the arbitration clause is inserted in the agreement. The respondentState of Jharkhand itself is not obeying the Circular. Now, the dispute has already arisen and notice for appointment of Arbitrator has already been given, the State of Jharkhand cannot take shelter of Circular dated 18th November, 1992. The terms and conditions of the agreement are binding to the State. Circular dated 18th November, 1992 cannot override the agreement which is signed by both the parties. ;